Eringa No 1 Native Title Claim v The State of South Australia

REASONS FOR JUDGMENT 1 The Court heard evidence from Mr Brownie Doolan under s 46 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) and O 24 r 1(1)(a) of the Federal Court Rules in November 2004, so as to preserve it for the hearing of this application for the determination of native title under the Native Title Act 1993 (Cth). The evidence included certain evidence which was "male gender restricted evidence", that is evidence relating to Aboriginal law which under Aboriginal law may not be disseminated by men to women, uninitiated men, non-Aboriginal men, or to children. 2 Before the preservation of evidence hearing, on 9 November 2004, the Court made an Order under O 78 r 4 and O 78 r 31(3)(a) and (f) of the Federal Court Rules dealing with how the proposed male gender restricted evidence should be managed. Order 4 provided: "The solicitor for the applicants must inform each Aboriginal witness before he testifies of the possibility that: (a) the Court may set aside or vary these orders; and

(b) female Judges may sit on any appeal." 3 The applicants have now applied for orders varying par (b) of that Order to read "a female judge may be appointed to the hearing of the application" and to add a further Order (to be Order 11) as follows: "Where such male gender restricted evidence was given by way of preservation evidence and the trial Judge who is appointed to hear the application is a woman, the applicants shall be entitled to not adduce such evidence by notice given no later than at the applicants opening at the hearing of the application before the trial Judge." 4 The parties are agreed about the proposed change to Order 4, provided par (b) is re-lettered as (c). I need not address that further. It makes clearer that which was implicit in any event. 5 The parties disagree about the proposed Order 11. 6 When the proposed Order 11 was first put forward, the word "withdraw" was included instead of the words "not adduce". Any suggestion that the applicants were thereby seeking to have recognised an entitlement to, in effect, take the male gender restricted evidence from the record was removed by the substitution of the words "not adduce". The objection of the other parties to the proposed Order 11 in its current form was that it was unnecessary and was not ostensibly even handed, and that it was potentially misleading by allowing for the uninformed inference to be drawn that no other party might adduce such evidence. As to the objection that the proposed Order 11 was not necessary, the applicants submitted that without such an Order the Order made on 9 November 2004 might have the unintended consequence of inhibiting the giving of "preservation evidence". 7 "Preservation evidence" under s 46 of the FCA Act does not automatically become evidence in the hearing of the proceeding: s 46(d). That subparagraph provides that the Court may: "(d) empower any party to the proceeding to give in evidence in the proceeding the testimony so taken on such terms (if any) as the Court or Judge directs." The parties were agreed about that. Consequently, the male gender restricted evidence given by Mr Doolan in November 2004 will not become evidence at the hearing unless, in the first place, the applicants seek to adduce it. If they do not do so, for whatever reason, then it would be most unlikely to become evidence. The proposed Order 11 is therefore merely declaratory of the operation of s 46(d). 8 I do not think it is necessary or, generally speaking, desirable for the Court to make orders which are merely declaratory of the uncontested operation of a provision of the FCA Act: Re Clay [1919] 1 Ch 66; Leverington v State Planning Authority [1970] SASR 387; Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297 per Barwick CJ. There is presently no contested factual circumstance between the parties which might call for the exercise of the discretion, nor any dispute as to the meaning or operation of s 46(d). How the discretion in s 46(d) is exercised will depend upon the circumstances at the time of its exercise. 9 No doubt, in a case such as the present, the exercise of the discretion under s 46(d) will be guided by the direction in s 82 of the Native Title Act 1993 (Cth). Section 82 provides: "Rules of evidence (1) The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders. Concerns of Aboriginal peoples and Torres Strait Islanders (2) In conducting its proceedings, the Court may take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders, but not so as to prejudice unduly any other party to the proceedings." That section finds expression also, in a more general way, in O 78 r 4 of the Federal Court Rules. 10 The position at present is plain. 11 Mr Doolan has given "preservation evidence". Part of it was identified as male gender restricted evidence and has been treated as confidential. There is no order restricting persons to whom it may be published. Mr Doolan has given his evidence, knowing that his evidence or parts of it may be, but need not be, adduced at the hearing of the application for determination of native title (if it proceeds to hearing and is not otherwise resolved) at the option of the applicants. In deciding whether to rely on his evidence, the applicants and their advisers may take into account a variety of matters, including whether it is desirable to reveal the male gender restricted evidence to the particular judge conducting the hearing. 12 The respondent parties may also apply to rely on Mr Doolan's evidence, or parts of it, at the hearing, in the event that the applicants do not do so. Mr Doolan will no doubt be advised that they would seek to do so only if it were perceived that it would help resist the claim, and will no doubt be advised as to whether his evidence might in any circumstances be seen by the respondents as having that character. There may also arise certain circumstances which lead to the respondents seeking to have his evidence received for a particular purpose, e.g. to show he has made inconsistent statements. Again, Mr Doolan will no doubt be advised about the chances of that happening. In the event that the respondent parties do seek to have Mr Doolan's evidence, or parts of it, received at the hearing under s 46(d) and the application is opposed, as noted above, the decision of the Court about whether to receive that evidence may be guided by s 82(2) of the Native Title Act 1993 (Cth) and O 78 r 4 of the Federal Court Rules. 13 As Order 4(b) of the present Order says, once evidence is received at the hearing of the application for determination of native title and the matter proceeds to judgment, the evidence at the hearing will be material to which the Court will have regard on any appeal, if it is relevant to a ground of appeal. And the Full Court of this Court may be constituted of one or more female judges. 14 I do not think in the circumstances that it is necessary to include the proposed Order 11. Nor do I think it is desirable. Firstly, to do so may give the wrong impression by focusing only on the rights of the applicants without recognising the rights of the respondents under s 46(d). Secondly, it merely provides an abbreviated and incomplete statement of the position that the adducing of any preservation evidence by any party, if it is sought to be adduced, is subject to the judicial discretion to which I have referred above. The factors which may be relevant to the exercise of that discretion need to be identified and weighed at the relevant time. Those matters are better explained by the legal representatives of Mr Doolan to him in some detail. Finally, in the particular circumstances of this matter, Mr Doolan's preservation evidence has already been given and at least in the first place it will be up to the applicants whether it is sought to be adduced at any hearing of the application for native title. His decision about what preservation evidence he might have given has already been made, and could not therefore have been influenced by the proposed Order 11. 15 Almost invariably (although not necessarily) preservation evidence in a claim under the Native Title Act 1993 (Cth) will be given by an indigenous person whose evidence is sought to be preserved to be available to the applicants if the claim proceeds to hearing. It is therefore a consensual process. The person being examined is generally available for cross-examination. That process enables a Court to see that the evidence has been able to be tested, and so to give the evidence appropriate weight. Such evidence may include, in the case of a male, male gender restricted evidence, and in the case of a female, female gender restricted evidence. The Court has, and has exercised, its powers to ensure such evidence is duly confined to those entitled to see it. The same powers have been exercised at the hearings of claims for the determination of native title, whether the judge hearing the claim has been male or female. These powers have been exercised also in cases other than under the Native Title Act 1993 (Cth): see e.g. Chapman v Luminis Pty Ltd (No 5) (2001) 123 FCR 62. 16 In Western Australia v Ward (1997) 76 FCR 492 at 496-499, Hill and Sundberg JJ explained that the judge hearing a matter has a role and presence which is an inevitable part of the exercise of judicial power under Chapter III of the Constitution. That is so whether the judge is male or female. It is to be hoped that, in claims under the Native Title Act 1993 (Cth), the parties can appreciate that significant point. They have done so in the past, e.g. in Chapman v Luminis Pty Ltd 123 FCR 62 when the judge (who was male) heard certain female gender restricted evidence. There are other illustrations. However, that is a matter for the parties in each case. 17 The point of those comments is to indicate disagreement with the contentions that the present form of Order 4, without the proposed Order 11, or that the proposed amended form of Order 4 without the proposed Order 11, might operate as a disincentive to a person from providing preservation evidence where it is otherwise appropriate to do so and where the proposed preservation evidence includes some gender restricted evidence. In addition to the powers of the Court to protect gender restricted evidence from inappropriate publication, in the case of preservation evidence there will also generally be the further step in the process of the applicants, at whose behest the evidence is to be preserved, having the opportunity to decide later whether to seek to have the preserved evidence or parts of it (including any gender restricted evidence) adduced at the hearing of the principal claim when and if the claim proceeds to hearing. Order 4 makes a potential witness aware that the Court may be constituted by a judge or judges who are male or female. But the matters to which I have referred, if properly explained, should enable a person proposing to give gender restricted evidence to be aware of the steps to be taken before that evidence may become evidence at a hearing of the claim for determination of native title, and of the powers available to the Court to ensure gender restricted evidence is properly restricted from publication. 18 The parties were agreed about orders I should make with respect to certain photographs taken or presented during the course of Mr Doolan's evidence. I will make those orders. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.